City of Birmingham v. Jenkins

• Decision Date: 11 December 2020
• Docket Number: 2190224
• Citation: 328 So.3d 889
• Parties: CITY OF BIRMINGHAM v. Keishana JENKINS, as the widow of Grady Jenkins, deceased, and as the mother and next friend of Kennedy Grace Jenkins, Khloe Jenkins, and Grayson Julian Jenkins, the minor children of Grady Jenkins
• Court: Alabama Court of Civil Appeals

328 So.3d 889

CITY OF BIRMINGHAM

v.Keishana JENKINS, as the widow of Grady Jenkins, deceased, and as the mother and next friend of Kennedy Grace Jenkins, Khloe Jenkins, and Grayson Julian Jenkins, the minor children of Grady Jenkins

2190224

Court of Civil Appeals of Alabama.

December 11, 2020

Brian Kilgore, asst. city atty., Birmingham, for appellant.

Ted L. Mann of Mann & Potter, P.C., Birmingham; and Joseph A. Ingram of Ingram Law, LLC, Birmingham, for appellee.

PER CURIAM.

The City of Birmingham ("the employer") appeals from an order of the Jefferson Circuit Court ("the trial court") denying its motion for a summary judgment and entering, on its own motion, a summary judgment awarding Keishana Jenkins, Kennedy Grace Jenkins, Khloe Jenkins, and Grayson Julian Jenkins ("the dependents") benefits under the Alabama Workers’ Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq., on account of the death of Grady Jenkins ("the employee").¹ We affirm the judgment insofar as it denied the employer's motion for a summary judgment; we reverse the judgment insofar as it entered a summary judgment for the dependents and remand the case for a trial on the merits.

Procedural Background

On the morning of November 1, 2017, the employee was shot and killed by an unknown assailant while working for the employer. On November 22, 2017, Keishana Jenkins, the employee's widow, filed a complaint against the employer seeking workers’ compensation benefits. The complaint was later amended to add claims on behalf of the other dependents, the minor children of the employee.² On September 18, 2019, after discovery was completed, the employer filed a motion for a summary judgment. The dependents filed a response to the motion on October 10, 2019, to which they attached various exhibits and deposition transcripts. The employer moved to strike the deposition transcripts. On December 5, 2019, after holding oral arguments on the employer's motion, the trial court denied the employer's summary-judgment motion and its motion to strike and entered a summary judgment awarding the dependents workers’ compensation benefits. The employer timely appealed.

Issues

The employer argues that the trial court erred in denying its motion to strike, in denying its motion for a summary judgment, and in entering a summary judgment awarding workers’ compensation benefits to the dependents.³

Analysis

A. The Evidence

1. The Motion to Strike

Before reciting the evidence, we first address the motion to strike filed by the employer. In ruling on a motion to strike evidence submitted in opposition to a motion for a summary judgment, a trial court has great discretion, and its determination on that issue will not be disturbed on appeal absent an abuse of that discretion. See Van Voorst v. Federal Express Corp., 16 So. 3d 86, 92 (Ala. 2008). Therefore, we proceed to determine whether the trial court abused its discretion in denying the motion to strike.

The employer moved to strike the entire deposition transcripts of Marlon Clayton, a coworker of the employee, Michelle Taylor, the administrator of the employer's workers’ compensation program, and Matt Graham, a former claims supervisor for the company that adjusted the employer's workers’ compensation claims.⁴ The employer argued that Rule 56, Ala. R. Civ. P., does not authorize a party to submit deposition transcripts as evidence in opposition to a motion for a summary judgment. In support of its argument, the employer relied on Furin v. City of Huntsville, 3 So. 3d 256, 263-64 (Ala. Civ. App. 2008), in which this court stated:

"On appeal, the plaintiffs argue that the trial court erred in striking the transcripts because, they say, Rule 56, Ala. R. Civ. P., ‘explicitly contemplates that depositions are to be submitted in opposition to affidavits.’ However, our supreme court has stated: ‘Rule 56, Ala. R. Civ. P., requires that a motion for summary judgment be supported by facts that would be "admissible in evidence." Hearsay statements that do not fall within an exception are inadmissible and cannot be used as evidence to defeat a properly supported summary-judgment motion.’ Aldridge v. DaimlerChrysler Corp., 809 So. 2d 785, 797 (Ala. 2001).

" Rule 802, Ala. R. Evid., provides: ‘Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.’ Rule 801(c), Ala. R. Evid., defines hearsay as a ‘statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ The Curry and Ming deposition transcripts are hearsay within the definition of Rule 801 and are inadmissible under Rule 802, unless they fall within an exception to that rule."

However, the employer failed to explain the context of that passage from Furin.

Furin involved an attempt by landowners who were parties in one civil action to use the deposition testimony of Charles Ming and John Curry taken in a separate civil action involving different parties. The Madison Circuit Court struck the Ming and Curry deposition transcripts as inadmissible hearsay under Rules 802 and 804, Ala. R. Evid. On appeal, this court treated the deposition transcripts as testimony given in a former trial or action, the admissibility of which was governed by Rule 804(b)(1). This court determined that the landowners had failed to show that Ming and Curry were unavailable or that the depositions had been taken in litigation involving substantially the same parties and substantially the same issues, as required by Rule 804(b)(1). We further rejected the landowners’ argument that the deposition excerpts were admissible through Rule 32(a)(3)(B), Ala. R. Civ. P. This court stated:

"[W]e have not found any case applying Rule 32 to allow the admission of a deposition transcript as the plaintiffs suggest: in a subsequent, separate action when the party submitting the transcript was not a party to the original action and when the party submitting the transcript never attempted to depose the witness. The plaintiffs have not directed this court to any such authority.

"....

"We do not believe that Rule 32 was intended to be applied in a situation such as this, where the deposition was taken in a separate action."

3 So. 3d at 266.

Unlike in Furin, the depositions of Clayton, Taylor, and Graham were taken in this action, during which the employer was represented and allowed to question the witnesses regarding the issues relevant to the controversy between the dependents and the employer. The employer does not cite any authority precluding a party from submitting deposition transcripts in such circumstances. To the contrary, in a summary-judgment proceeding, Rule 56(c), Ala. R. Civ. P., specifically authorizes a party to submit "portions of discovery materials" -- such as deposition testimony -- in support of its narrative summary of what it considers to be the undisputed material facts. Like with an affidavit, a deposition transcript must "set forth such facts as would be admissible evidence," Rule 56(e), Ala. R. Civ. P., but, in this situation, that limitation refers to the admissibility of the content of the deposition as if the witness was testifying live at trial. See generally Dunaway v. King, 510 So. 2d 543, 545 (Ala. 1987) ("While Rule 56, Ala. R. Civ. P., permits evidence in the form of depositions, answers to interrogatories, admissions on file, and affidavits to be submitted in support of, or in opposition to, a summary judgment motion, that evidence must, nevertheless, conform to the requirements of Rule 56(e) and be admissible at trial."). The employer does not point to any particular statements within the depositions that it considers to be hearsay. Therefore, we hold that the trial court did not err in denying the motion to strike the deposition transcripts of Clayton, Taylor, and Graham on hearsay grounds.

The employer also moved to strike excerpts from the deposition transcript of Sgt. Talana Brown, the former homicide detective who investigated the death of the employee, in which she testified regarding, among other things, Birmingham crime rates. Sgt. Brown testified as a representative of the employer, pursuant to Rule 30(b)(6), Ala. R. Civ. P., which provides, in pertinent part:

"A party may in the party's notice and in a subpoena name as the deponent a ... governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more ... persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. ... The persons so designated shall testify as to matters known or reasonably available to the organization. ..."

The employer argues that the dependents did not request a deposition on the subject of municipal crime statistics and that the employer did not designate Sgt. Brown to testify on that subject. For that reason, the employer maintains that any testimony given by Sgt. Brown regarding the crime rate in the area where the employee was killed constitutes inadmissible hearsay. The employer has not cited any legal authority to support the proposition that a statement made by a Rule 30(b)(6) representative regarding a subject outside the scope of the designated subject matter is hearsay that cannot be used in summary-judgment proceedings. "It is well settled that this court will not consider issues for which no legal arguments are developed and for which no authority is offered to support the appellant's contentions." May v. May, 292 So. 3d 385, 388 (Ala. Civ. App. 2019) (discussing Ala. R. App. P., Rule 28(a)(10) ). Thus, we conclude that the employer has not demonstrated that the trial court erred in refusing to strike the excerpts from Sgt. Brown's deposition testimony.

Lastly, the employer moved to strike excerpts of the deposition transcript of ...